Don’t Try Terrorists, Lock Them Up

We've got a trial in NYC beginning Tues, Oct. 12: Ahmed Ghailani is charged with conspiring in the 1998 bombings of the American embassies in Kenya and Tanzania that killed 224 people. These were Al Quaeda attacks.

Whether convicted or not, he's not going to be released. I don't see why NYC should sponser a trial for this person, which is expected to last at least four to five months. The NYT op-ed article, below, makes some points about why it's a waste of time to even try cases like this.



October 8, 2010
New York Times Op-Ed

Don’t Try Terrorists, Lock Them Up
By JACK GOLDSMITH
Cambridge, Mass.

THE Obama administration wants to show that federal courts can handle trials of Guantánamo Bay detainees, and had therefore placed high hopes in the prosecution of Ahmed Khalfan Ghailani, accused in the 1998 bombings of American embassies in East Africa. On Wednesday a federal judge, Lewis Kaplan of the United States District Court in Manhattan, made the government’s case much harder when he excluded the testimony of the government’s central witness because the government learned about the witness through interrogating Mr. Ghailani at a secret overseas prison run by the C.I.A.

Some, mostly liberals and civil libertarians, applauded the ruling, saying it showed that the rule of law is being restored. But many conservatives denounced it as proof that high-level terrorists cannot reliably be prosecuted in civilian courts and should instead be tried by military commissions.

The real lesson of the ruling, however, is that prosecution in either criminal court or a tribunal is the wrong approach. The administration should instead embrace what has been the main mechanism for terrorist incapacitation since 9/11: military detention without charge or trial.

Military detention was once legally controversial but now is not. District and appellate judges have repeatedly ruled — most recently on Thursday — that Congress, in its September 2001 authorization of force, empowered the president to detain members of Al Qaeda, the Taliban and associated forces until the end of the military conflict.

Because the enemy in this indefinite war wears no uniform, courts have rightly insisted on high legal and evidentiary standards — much higher than what the Geneva Conventions require — to justify detention. And many detainees in cases that did not meet these standards have been released.

Still, while it is more difficult than ever to keep someone like Mr. Ghailani in military detention, it is far easier to detain him than to convict him in a civilian trial or a military commission. Military detention proceedings have relatively forgiving evidence rules and aren’t constrained by constitutional trial rules like the right to a jury and to confront witnesses. There is little doubt that Mr. Ghailani could be held in military detention until the conflict with Al Qaeda ends.

Why, then, does the Obama administration seek to prosecute him in federal court? One answer might be that trials permit punishment, including the death penalty. But the Justice Department is not seeking the death penalty against Mr. Ghailani. Another answer is that trials “give vent to the outrage” over attacks on civilians, as Judge Kaplan has put it. This justification for the trial is diminished, however, by the passage of 12 years since the crimes were committed.

The final answer, and the one that largely motivates the Obama administration, is that trials are perceived to be more legitimate than detention, especially among civil libertarians and foreign allies.

Military commissions have secured frustratingly few convictions. The only high-profile commission trial now underway — that of Omar Khadr, a Canadian who was 15 at the time he was detained — has been delayed for months. Commissions do not work because they raise scores of unresolved legal issues like the proper rules of evidence and whether material support and conspiracy, usually the main charges, can be brought in a tribunal since they may not be law-of-war violations.

Civilian trials in federal court, by contrast, often do work. Hundreds of terrorism-related cases in federal court have resulted in convictions since 9/11; this week, the would-be Times Square bomber, Faisal Shahzad, was sentenced to life in prison after a guilty plea.

But Mr. Ghailani and his fellow detainees at Guantánamo Bay are a different matter. The Ghailani case shows why the administration has been so hesitant to pursue criminal trials for them: the demanding standards of civilian justice make it very hard to convict when the defendant contests the charges and the government must rely on classified information and evidence produced by aggressive interrogations.

A further problem with high-stakes terrorism trials is that the government cannot afford to let the defendant go. Attorney General Eric Holder has made clear that Khalid Shaikh Mohammed, the 9/11 plotter, would be held indefinitely in military detention even if acquitted at trial. Judge Kaplan said more or less the same about Mr. Ghailani this week. A conviction in a trial publicly guaranteed not to result in the defendant’s release will not be seen as a beacon of legitimacy.

The government’s reliance on detention as a backstop to trials shows that it is the foundation for incapacitating high-level terrorists in this war. The administration would save money and time, avoid political headaches and better preserve intelligence sources and methods if it simply dropped its attempts to prosecute high-level terrorists and relied exclusively on military detention instead.


Jack Goldsmith, a former assistant attorney general in the George W. Bush administration, is a professor at Harvard Law School and a member of the Hoover Institution’s Task Force on National Security and Law.

http://www.nytimes.com/2010/10/09/opinion/09goldsmith.html

 

The civilian terrorist trial is getting underway in New York, and the prosecution is already beset with problems - mostly because a key witness, Hussain Aede, has been barred by the judge from testifying. This trial is nothing more than a gigantic waste of the taxpayers money, and hopefully it will be the last trial of this type.


Landmark terror trial continues in New York

By the CNN Wire Staff
October 12, 2010


STORY HIGHLIGHTS

• Ghailani is the first Guantanamo Bay detainee tried on terror charges in civilian court
• He is accused of being part of the bombings of United States embassies in Africa
• A key witness for the government is barred from testifying, a judge rules

New York (CNN) -- The landmark trial of Ahmed Ghailani continues Tuesday with prosecutors trying to move past a judge's decision to bar a key witness from testifying.

Ghailani, who is accused of being part of the deadly 1998 bombings of United States embassies in Kenya and Tanzania, is the first former Guantanamo Bay detainee to be tried on terror charges in civilian court.

Ghailani was indicted on a total of 286 charges, including allegedly conspiring with Osama bin Laden and other al Qaeda members to kill Americans anywhere in the world.

He also faces 224 separate counts of murder, one for each person killed in the embassy attacks.

Ghailani was listed on the FBI Most Wanted Terrorists list from the time it was created in 2001 until he was captured in Pakistan in 2004.

Two years later, he was taken to the Guantanamo Bay detention facilities in Cuba, where he remained until the Obama administration transferred him on June 9 to the New York federal court to stand trial for his alleged role in the embassy bombing.

Last week, the prosecution suffered a setback when Judge Lewis Kaplan ruled that Hussain Abebe, a key witness, could not testify.

Ghailani told the CIA about Abede while agents were interrogating him. Defense attorneys had argued that Ghailani identified the witness after harsh treatment by the CIA, court documents show.

Kaplan ruled that the witness would not testify because of how Ghailani was treated during the interrogation.

But in court documents the judge did not specify what happened to Ghailani during the CIA interrogation.

"[The] government has elected not to litigate the details of Ghailani's treatment while in CIA custody," Kaplan wrote in his ruling.

"In these circumstances, the Constitution does not permit [Hussain] Abebe to testify in this criminal trial," the judge added.
Landmark terror trial continues in New York - CNN.com

 

If they want to try these Gitmo suspects, it is becoming increasingly obvious that the proceedings should take place at a military trubunal, not in a United States Federal court for civilians.

Footnote in terrorism ruling brings politics to the courtroom

Oct 14, 2010 19:00 EDT

The trial in New York of Ahmed Ghailani, the first suspect from the Guantanamo Bay, Cuba prison to face a jury in a U.S. criminal court, is being closely watched as a template for future terrorism cases and by those who think those suspects should be in military courts instead.

Ghailani, a Tanzanian, is accused of participating in the 1998 al Qaeda-sponsored bombings of the U.S. embassies in Tanzania and Kenya, which killed 224 people. He was arrested in 2004 in Pakistan, and was subsequently taken into CIA custody for two years before going to the Guantanamo prison.

Many Republicans and some Democrats have said civilian courts are not up to the challenge of prosecuting terrorism suspects and favor the military commissions.

That fiery debate made its way into the trial on Thursday in the form of a lengthy footnote near the end of a 60-page ruling that barred a key witness, Hussein Abebe, from testifying. He is believed to have sold Ghailani the TNT explosives used in the bombings.

Judge Lewis Kaplan, defended his decision to bar the witness — because he had only been discovered after Ghailani was coerced to reveal his identity — and said a military commission judge would likely have made the same call.

“It is very far from clear that Abebe’s testimony would be admissible if Ghailani were being tried by military commission,” the judge said, adding that the laws governing military trials may bar or restrict evidence obtained from torture, cruel or inhumane treatment.

“Even if they did not, the Constitution might do so, even in a military commission proceeding,” he wrote.

When the judge first announced this last week, critics pounced. They said the loss of Abebe was a clear sign the civilian courts couldn’t handle important cases such as Ghailani.

“The notion that a military commission is going to be favorable to the prosecution is not necessarily true,” said Col. Morris Davis, a former prosecutor at the early Guantanamo military trials. “So I tend to agree with the judge.”

He acknowledged that in military commissions the “rules are broader than in federal courts,” but he added that the individual judges tended to adhere to stricter than minimum standards.

Proponents of military commissions argue they are more reliable at securing convictions and are more appropriate for suspects who they say don’t deserve the full panoply of legal rights afforded U.S. citizens in federal courts.

Ben Wizner, a lawyer at the American Civil Liberties Union, disagreed.

Although there is no way to know how a military commission would have handled the Abebe question, Wizner said, “there is reason to be wary that a military commission might have allowed this witness to testify.” Judges in the military system have “a lot more discretion.”

As to why Kaplan brought up the issue in the first place, Wizner couldn’t say. “Judge Kaplan has no reason to be defensive of his ruling,” he said, because “the possibility that military commissions might have reached a different outcome is not a critique of the federal courts but a rising endorsement of them.”

Footnote in terrorism ruling brings politics to the courtroom | Analysis & Opinion |